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Cunningham v. Mylan Pharmaceuticlals, Inc.

United States District Court, District of Columbia

September 29, 2018




         Plaintiff Amy E. Cunningham brings this action against her former employer, Mylan Pharmaceuticals, Inc. (“MPI”), alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2000), and age discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a). Compl. p.1. MPI seeks partial dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that some of Cunningham's claims are time barred. ECF No. 29, Def. Mot. to Dismiss. For the reasons set forth below, the court will DENY the motion and permit Cunningham to amend her Complaint.

         I. BACKGROUND

         MPI hired Cunningham in April 2010 as “Director of ARV Business Development, ” which involved managing MPI's “business development and commercial portfolio” of antiretroviral drugs in Africa. Compl. ¶ 5. Her office was based in Tanzania, where she lived during her employment.[1] Id. ¶ 10. Cunningham asserts that from the beginning of her employment, her India-based male co-workers and managers subjected her to discrimination. Id. ¶ 12. Specifically, she claims she was “pigeonholed in a narrow role by her male supervisors” and “was never permitted to advance in management, ” thereby impeding her professional development. Id. ¶ 11. Although Cunningham considered accepting a position with the United States Agency for International Development in 2011, she was encouraged to remain at MPI by two female MPI executives, who promised her a new reporting structure in which she would be allowed to take on additional responsibilities. Id. ¶¶ 12-15.

         Cunningham claims that despite these promises, she continued to suffer gender and age-based discrimination. She provides various examples of MPI employees failing to give her credit for her work and failing to provide her with opportunities for assuming greater responsibility. Id. ¶¶ 18, 24-27. On one occasion, despite promises that Cunningham would receive “supervisory responsibility over the commercial activity in Africa, ” MPI awarded a supervisory position to one of her male Indian co-workers. Id. ¶ 18. On another occasion, after Cunningham requested more responsibility, her supervisor replied, “you are over 50 years old; why are you so keen to take more on - just relax and don't work so hard?” Id. ¶ 43. Cunningham contends that this statement reflected the “general sentiment” among MPI's male supervisors that older foreign women “should not take on senior positions in the India structure or in the Africa” region. Id. ¶ 44. Cunningham also alleges that her recommendations on projects or for improving system operations “were almost always ignored, ” and that junior male co-workers were given responsibility for implementing projects that she masterminded. Id. ¶¶ 25-26.

         Cunningham also contends that MPI excluded her from important meetings, withheld important information from her, and undermined her work. Although she communicated with her managers on a weekly basis, on one occasion she met a new high level MPI executive and discovered that “the guys ‘(her Indian managers)'” had falsely informed the executive that they did not know what she did and had not heard from her in months. Id. ¶ 23. MPI did not acknowledge her weekly reports, nor did it acknowledge her requests to receive her team members' trip reports. Id. ¶¶ 28, 35. Although Cunningham traveled to other African countries up to fifteen times per year, she “received little or no guidance on planning and no feedback or acknowledgment upon submitting her trip reports.” Id. ¶ 28. Cunningham asserts that she was “routinely” shut out “as a contributing member” of her unit, “consistently left . . . off e-mails and excluded . . . from meetings.” Id. ¶ 22. Her supervisors “frequently neglected” to tell her when other team members were visiting African countries over which she had responsibility. Id. ¶ 23. Even though Cunningham and a male co-worker were to jointly supervise various operations in Africa, she was “never allowed joint planning or joint discussions on overall work.” Id. ¶ 27. Moreover, she was “not apprised of information regarding new product launches” and her direct supervisor “provided no guidance or feedback on her work.” Id. ¶¶ 24, 27. Indeed, she did not receive a written performance evaluation for five years. Id. ¶ 29.

         Cunningham claims that MPI terminated her in July 2016 because of a “cultural bias against female leaders.” Id. ¶¶ 20, 39. She filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) on August 26, 2016, in which she alleged discrimination based on sex and age. Id. ¶ 48; Defs. Ex. A.


         A motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible when it alleges sufficient facts to permit the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). When considering a defendant's motion to dismiss for failure to state a claim, “the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations.” Ahuja v. Detica, Inc., 742 F.Supp.2d 96, 102 (D.D.C. 2010) (citation omitted).[2]


         A plaintiff bringing a claim under Title VII must first file a charge with the EEOC either 180 or 300 days “after the alleged unlawful employment practice occurred.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 104 (2002) (citing 42 U.S.C. § 2000e-5(e)(1)). The 180-day deadline is extended to 300 calendar days if a state or local agency prohibits employment discrimination on the same basis as Title VII. See Greer v. Bd. of Trs. of Univ. of D.C., 113 F.Supp.3d 297, 306-07, 307 n.7 (D.D.C. 2015) (citation omitted). Because the District of Columbia does have such an employment discrimination law, the applicable limitations period here is 300 days. See id.; D.C. Code § 2-1401.01 et seq.

         MPI seeks dismissal of all of Cunningham's sex discrimination claims occurring before October 31, 2015 (i.e., more than 300 days prior to the filing of Cunningham's August 26, 2016 EEOC charge). Cunningham responds that MPI's conduct amounted to a hostile work environment and, because some conduct occurred within the 300-day limitations period, her claims involving conduct that occurred before October 31 are not time-barred. ECF No. 31, Pl. Resp.

         MPI counters that Cunningham's pre-October 31, 2015 allegations describe a series of discrete and isolated incidents which do not rise to the level of a hostile work environment claim, and point to the fact that Cunningham did not use the term “hostile environment” in her EEOC charge or her Complaint. The court finds MPI's arguments unpersuasive.

         A. ...

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